Porter v. Moles

• Decision Date: 09 May 1911
• Citation: 131 N.W. 23,151 Iowa 279
• Parties: H. G. PORTER, Appellant, v. JAMES I. MOLES
• Court: Iowa Supreme Court

131 N.W. 23

151 Iowa 279

H. G. PORTER, Appellant, v. JAMES I. MOLES

Supreme Court of Iowa, Des Moines

May 9, 1911

Appeal from Linn District Court.--HON. MILO P. SMITH, Judge.

ACTION by plaintiff as holder of a promissory note against the defendant as blank indorser and guarantor thereof. By his answer the defendant put in issue the allegations of the petition as to his liability as guarantor and as to the sufficiency of notice to hold him as indorser, and he also denied the allegation in an amendment to the petition that he had waived demand and notice. There was a verdict for the defendant, and from judgment on this verdict plaintiff appeals. Affirmed.

Affirmed.

Thompson & Son and F. L. Anderson, for appellant.

Voris & Haas, for appellee.

OPINION

MCCLAIN, J.

I.

There was no issue as to the validity of the note sued upon, nor as to the fact of its indorsement in blank by the defendant, but it was claimed for appellant that at the time the defendant indorsed the note he also orally guaranteed its payment. There is nothing in the record supporting this contention and the only error in this respect committed by the trial court, if any, consisted in the sustaining of an objection to a question propounded to plaintiff as a witness on direct examination asking him to state what, if anything, defendant said to him at the time plaintiff acquired the note in controversy "pertaining to the turning over of that note to you and respecting his liability thereon in the future, if any." Prejudicial error can not be predicated on this ruling of the court for the reason that it does not appear by statement of counsel or otherwise what the testimony of the witness would have been in response to this question. We have no means of knowing that the testimony that counsel was attempting to elicit would tend to show in any degree whatever a guaranty of the note. It is well settled that before a case will be reversed on the ground of exclusion of evidence, it must appear in some way that the evidence, if it had been admitted, would have tended to support the contention of the party for whom it was offered. The question itself does not disclose the nature of the testimony proposed to be elicited by it. The ruling is not therefore subject to review. Jenks v. Knotts Mexican Silver Mining Co., 58 Iowa 549, 12 N.W. 588; Kelleher v. Keokuk, 60 Iowa 473 15 N.W. 280; Shellito v. Sampson, 61 Iowa 40, 15 N.W. 572; Mitchell v. Harcourt, 62 Iowa 349, 17 N.W. 581; Votaw v. Diehl, 62 Iowa 676, 13 N.W. 757; Paddleford v. Cook, 74 Iowa 433, 38 N.W. 137; Deere v. Bagley, 80 Iowa 197, 45 N.W. 557; Hirschl v. Case Threshing Machine Co., 85 Iowa 451, 52 N.W. 363; In re Will of Trotter, 117 Iowa 417, 90 N.W. 750.

Moreover, parol evidence tending to vary the liability of a blank indorser so as to make him liable as guarantor and relieve the holder of the obligation to make demand and give notice of dishonor is not admissible. It may be conceded that there are cases decided by this court in which the admissibility of such evidence has, at least by implication, been sustained, but we need not discuss them, for, if there ever was any such rule in this state, it has been abrogated by the adoption of the Negotiable Instrument Act which has brought the law with us into conformity with that previously existing in other states and generally sustained by the weight of authority. Code Supp. 1907, sections 3060-a17, 3060-a63, 3060-a66, and note; Baumeister v. Kuntz, 53 Fla. 340 (42 So. 886); Gibbs v. Guaraglia, 75 N.J.L. 168 (67 A. 81); Mackintosh v. Gibbs, (N. J.) 79 N.J.L. 40, 74 A. 708.

II. It is conceded that the notice of dishonor given to defendant was premature and of no effect, but it is contended for appellant that at the time such notice was given defendant by his language and conduct waived further notice. It appears from the record that two days before the note was due, and under an erroneous assumption that that was the day on which notice of dishonor was to be given, the plaintiff gave to defendant a written notice that said note was due and unpaid and that defendant would be held responsible on account of his indorsement. At this time plaintiff asked defendant to take up the note which was secured by second mortgage on real estate, and defendant told plaintiff that he would not do so, and that plaintiff's only remedy was by exhausting the security. It further appears that on this occasion defendant said to plaintiff, "If you attempt to collect from me, I will fight you in the courts," and that defendant...